Sharing for the baby’s own good
Things have gone sour. The last thing the couple wants is to see is each other’s face. And after all efforts to erase this awful emotion yield no fruit, the couple succumbs to the contemporary way out—divorce.
But there is one thing they have in common. Something their hearts respond to in the same stride. That which toned down their voices during the fights. The thing that makes them want to jump the mountains and swim the oceans just to ensure that it gets the very best. It is their baby.
Now, a ‘King Solomon’ has lifted up his sword and the two sides are to negotiate for a portion of their beloved baby—because they need to go apart. Nature has it that that is not possible naturally, emotionally or even socially if the welfare of the subject of the matter (baby) is to be put in good consideration.
This is where joint custody comes in—an arrangement where both parents have legal (court approval) custody over their child. According to advocate, Phyllis Namachanja, family law proceedings which involve issues of residence and contact often generate complicated disputes. While most parents cooperate when it comes to sharing their children, not all do.
In Kenya, says Namachanja, the law has it that the child automatically stays with the mother until they are 18. The father is to provide for the child until then. The lawyer goes on to enlighten that in most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child.
The father can, however, stay with the baby if he proves beyond reasonable doubt that the child’s mother is not capable of bringing up the child in an ideal manner citing unstable physical and psychological conditions; like poor physical health, mental instability or a tainted police record. To do so, the court must determine that shared parental responsibility would be detrimental to the child.
Such cases, where the court orders total parental responsibility and custody to one parent denying the other parent any access to the child are rare though. In most cases, parental responsibility for a baby will be shared by both parents so that each retains full parental rights and responsibilities with respect to their child.
This requires both parents to be in agreement with the status of the custody as major decisions affecting the welfare of the child will be determined jointly. You and your spouse may agree, or the court may order, that one parent gets the ultimate responsibility over specific aspects of the child’s welfare, such as education, religion, their being relocated, medical and dental needs. If you as a couple have a substantial conflict over any of these areas the court will decide for you. As mentioned earlier, the court will also designate one parent’s home as the primary residence of the child. The other parent is usually entitled to frequent and continuing contact with the child.
The court may also award to the child’s grandparents certain visitation rights if it is deemed by the court to be in the child’s best interest. Thereafter, the grandparents have the right to seek judicial enforcement of the visitation rights.
The court may award grandparents visitation rights after the parents’ divorce, when one or both parents of the child are deceased, or when a parent of the child has deserted the child. Again, the best interest of the child is the primary consideration by the courts.
You and your spouse each have a responsibility to support your baby in accordance with their needs and your financial abilities. Support may be by direct payment or by indirect benefits, such as mortgage payments, insurance, or medical and dental expenses. Ordinarily, the obligation to support your child ends when that child reaches 18, marries, or becomes financially independent.
Some of the issues concerning child support which must be considered include; the amount of support, the method of payment, ways to assure payments are made, when child support may be increased or decreased, and who claims the dependency deduction for tax purposes. Other questions may need to be answered, depending on the circumstances of your case. Guidelines for support which apply to all cases are generally based on the income of the parents and the number of children.
If you have a problem getting support payments from your spouse or former spouse, or visitation and access to your child is denied, you should bring this matter to the attention of the court. It is not proper to withhold visitation or child support payments because of any alleged wrongdoing by your spouse or former spouse. This is to ensure that everyone gets their fair share—for the baby’s own good.
Phyllis Namachanja is an Advocate of the High Court of Kenya.
The father can, however, stay with the baby if he proves beyond reasonable doubt that the child’s mother is not capable of bringing up the child in an ideal manner citing unstable physical and psychological conditions like; poor physical health, mental instability or a tainted police record.
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